On The Civil Enforcement Of A Settlement

When litigation emerges as a major means of public relief, we become moredependent on courts, the public power to settle disputes. However, in practice, "difficultexecution" is unavoidable. Relying solely on the enforcement of courts will not help torealize the rights of the parties instantly. The system of reconciliation, however, willhelp to solve the problem of "difficult execution".Civil execution reconciliation, short for execution reconciliation, is a specialsystem of civil execution in China. With this system, both creditors and debtors canhave their interests balanced in the enforcement. As autonomy of will expands in theenforcement, execution reconciliation becomes increasingly widely used. However, thetheoretical studies in execution reconciliation still need improvement in our country andthere is little to learn from foreign theoretical studies and practices. Therefore, theauthor will begin with the definition of execution reconciliation, analyze its theoreticalbasis and the problems existing in our legislative and judicial practices, and finally theauthor will put forward own ideas and advices on improvement of the executionreconciliation system in China.The thesis contains four chapters.In preface, the author looks into the history of litigation, introduces the value andfunction of the system of execution reconciliation, and emphasizes the necessity tostudy and improve this system.Chapter one is the overview of the system of civil execution reconciliation.Beginning with its definition, the author analyzes the practical forms of executionreconciliation and further introduces the elements consist of the system. Through theoverview, the author concludes the importance of the system and its significantfunctions in judicial practice. The system execution reconciliation accelerates theprocess to settle the disputes between parties and save the litigation cost, finallyrealizing the rights of the parties.Chapter two is analysis on the theoretical basis of the system of civil executionreconciliation. In this part, the author maintains the basis of the justification of thesystem, that is, the inner and outer motives of its birth. Then, the author further analyzesthe legal nature of civil execution reconciliation and compares the executionreconciliation contract with the common civil contract and reconciliation contract aswell. In this chapter, the author analyzes the nature of different reconciliation contractsand concludes: execution reconciliation contract is a kind of civil contract and aparticular civil contract as well. In the last part, the author analyzes the effect ofexecution reconciliation. It changes the rights and obligations between two parties andat the same time have the legal force in terms of procedure.Chapter three analyzes the current legislative and judicial practices of theexecution reconciliation system in our country, pointing out the problems of the simplelegislation and poor operability in judicial practices. In this chapter, the authorresearches the phenomenon and source of the problem in the current executionreconciliation system and sets up the basis for the improvement of the executionreconciliation system in the next chapter.Chapter four is the major part of the thesis. On the basis of the above analysis, theauthor comes up with own blueprint of the improvement on the execution reconciliationsystem. This chapter analyzes the improvements from two aspects: the governing rulesand the specific measures. The author's argument is as follows. First, we should build ascientific idea about execution reconciliation, attach to the principle of basing thereconciliation on parties' own will, strengthen the check and supervision betweenpowers and establish the scientific evaluation system on execution. Second, in terms ofspecific measures, we should have clear knowledge about the contents and forms ofreconciliation contract, granting with general legal force. We should also make termsabout invalid and evocable settlement contract, specify the application period ofrecovering the former execution, perfect the relief system and check the execution ofreconciliation contracts. In practice, we need to control the property of execution,ensure the performance of debt and improve the informing system for an openexecution.From what has been analyzed above, the author draws the conclusion that as thedevelopment of the litigation system, execution reconciliation system should beimproved. In the part of the conclusion, the author emphasizes the resolution to theproblems of current legislation and legal practice of our country, and summary theadvices and blueprint to the system of civil execution.